INEC and inconclusive polls palaver

SECTION 179(2) of the 1999 Constitution of the Federal Republic of Nigeria as amended provides, “A candidate for an election to the office of a governor of a state shall be deemed to have been duly elected where, there being two or more candidates – (a) he has the highest number of votes cast at […]

SECTION 179(2) of the 1999 Constitution of the Federal Republic of Nigeria as amended provides, “A candidate for an election to the office of a governor of a state shall be deemed to have been duly elected where, there being two or more candidates – (a) he has the highest number of votes cast at the election; and – (b) he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State”. The above, categorically presented requisites for emergence of a winner in a governorship election.

Quintessentially, Section 1(3) of the Constitution states, “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void”. By this subsection, it is deductible the Constitution doesn’t exist in isolation instead alongside other laws. Thus, the Constitution remains the ground norm – hub from where all laws draws their legitimacy and doesn’t impede other compatible laws.

Conventionally, administrative rules are set by statutory bodies. For example, the Constitution guarantees fundamental human rights in Chapter 4. However, by rules of the courts, the enforcement may be encumbered over noncompliance of rules of the court. In other words, administrative laws of statutory bodies are acceptably enforceable laws as long as they are not inconsistent with the Constitution or repugnant to social justice, equity and good conscience.

Concisely, Section 153(1)(f) established the Independent National Electoral Commission as a statutory body. In Paragraph 15 of the Third Schedule (Part 1), the Constitution distinctively empowers the Commission to – (a) organize, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation. In addition, Paragraph 15(f) provides – “to monitor political campaigns and provide rules and regulations which shall govern the political parties”.

By the aforementioned clauses, INEC is indisputably, statutorily competent to provide guidelines, rules and regulations governing presidential, governorship, National and House of Assembly, and elections in FCT. Then, the Fundamental Objectives and Directive Principles of State Policy in Chapter 2 of the Constitution probably, systematically conceptualized the Margin of Lead Principle to complement Section 179(2). For instance, Section 14(1) provides, “The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice”.

Critically, if universal suffrage remains the hallmark of democracy, could disenfranchising some voters under the guise of cancellation synchronize with social justice knowing it deprives some citizens their votes in choosing their leaders? The principle merely ensures that cancelled votes do not affect the ultimate outcomes. In fact, in any manual system, the rule is indispensable vis-à-vis a credible, free and fair election. Strangely, any winning side propagandistically mounts pressures in crocodile tears aiming to be returned halfway against the rule which was never contested until then. Sensibly, without the remedy, self-centered politicians may always take advantage of votes’ cancellations to rob opponents of potential votes in their strongholds by instigating chaos. Thus, the rule complementarily, strategically checkmates false claims of “if not the void votes”. Without doubt, in any credible election, all votes must count.

Thus, INEC’s 2019 Regulations and Guidelines in Paragraph 33(b) provides – “Where the total number of registered voters in the affected Polling Units is less than the margin by which the leading candidate is ahead of the second candidate, indicating that the outcome of the election will not be affected by the supplementary election, the returning officer shall announce the result”.

On the other hand, Paragraph 33(e) states – “Where the margin of lead between the two leading candidates in an election is NOT in excess of the total number of voters registered in Polling Units where elections are not held or voided in line with Sections 26 and 53 of the Electoral Act, the returning officer shall decline to make a return until polls have taken place in the affected Polling Units and the results collated into the relevant forms for Declaration and Return. This is the Margin of Lead Principle and shall apply wherever necessary in making returns of all elections to which these Regulations and Guidelines apply”.

Clearly, these rules didn’t indicate any mischief or witch-hunt against any candidate but a general guideline to ensure all votes credibly count. Again, in legal jurisprudence, “Qui approbat non reprobat” translates – One who approbates cannot reprobate. By submitting to INEC’s regulations and guidelines, there is no basis to contest the clause when it seemingly doesn’t favour a candidate amid the poll, without any distinctly inconsistency with the Constitution.

Above all, the apex court in Faleke v INEC & Anor (SC.648/2016) NGSC 1 (29 Sept, 2016) had laid the matter to rest. The judgment is convincingly a landslide for democracy. The Margin of Lead Principle is phenomenal. Convincingly, it strategically produces a factual winner. Arguably, the umpire’s Regulations and Guidelines aren’t inconsistent; instead resoundingly complement the constitutional provisions for the aforesaid categories of elections, thus, typically a non sequitur to cry foul over a part of well-known rules amid a game. INEC is conceivably, merely conscientiously proactive.

Umegboro is a public affairs analyst and Associate, Chartered Institute of Arbitrators (United Kingdom).